How the Bush Administration Should Handle China

About the Author

In August 2001 the United States Navy held a
two-carrier passing exercise in the South China Sea. Navy spokesmen
denied that the exercise was intended to send a message to China,
but it was in the right location to do just that. In fact,
Washington needs to do a lot more of the same as a first step
toward protecting American interests in the South China Sea.

The
United States is the world's largest trading nation; 90 percent of
the world's trade moves via ship, and 45 percent of all shipping
moves through Asia's lawless waters. America's continued prosperity
requires free access to the markets and producers of Asia, and the
United States Navy is the only reliable guarantor of freedom of
navigation in Asia's seas.

But
China's sweeping territorial claims in the South China Sea and
skewed interpretation of the law of the sea are an explicit threat
to the freedom of navigation. Six countries claim maritime borders
in the South China Sea, but Beijing claims virtually the entire
waterway as Chinese territory and declares that foreign warships
traversing its maritime territory must first gain China's
permission. Beijing's penchant for unilateral military action
against the territorial claims of other countries in the region,
such as establishing a naval outpost on Mischief Reef less than 200
miles from the Philippines, further militarizes the dispute and
forces the countries of Southeast Asia to choose between
confronting or submitting to Beijing's threats.

Thus
far, the U.S. response to the Chinese challenge has been to remain
neutral on the competing maritime border claims and to avoid
criticism of China. Other countries in the region have made
attempts to defuse the problem, such as Indonesia's informal
conferences in the 1990s, but Beijing has refused multilateral
solutions that do not recognize Chinese sovereignty. If Washington
continues to allow Beijing's willful misinterpretation of the
United Nations Convention on the Law of the Sea (UNCLOS) to remain
unchallenged, the South China Sea will become a de facto Chinese
lake, the countries of Southeast Asia will be subject to Beijing's
interpretations of international law and sovereignty, and the
American Navy will have to ask permission from China to transit
this vital international waterway.

To
avoid this outcome, the Bush Administration must make it clear to
China and other claimants that the United States opposes extreme
claims that interfere with or threaten freedom of navigation.
Washington also must unequivocally oppose the use of force to
resolve territorial disputes in, and recommend a demilitarization
of the islands and reefs in, the South China Sea. Finally, the Bush
Administration should insist that the competing claimants formulate
a process to resolve the dispute.

The Dispute

The
South China Sea issue appears complicated because of the competing
claims of six different governments, the arcane nature of the
various historical claims, and the impotence caused by voluntary
enforcement of the United Nations Convention on the Law of the Sea.
In reality, the dispute is relatively easy to understand. Starting
a process to resolve or neutralize the problem, however, requires
American leadership and resolve.

Six
countries claim the islands of the South China Sea: the People's
Republic of China, the Republic of China (Taiwan), Vietnam,
Malaysia, the Philippines, and Brunei. China, Taiwan, and Vietnam
claim all of the islands in the South China Sea based largely on
historical documents. The Philippines, Malaysia, and Brunei claim
all or parts of the Spratly Islands based largely on their
respective Exclusive Economic Zones (EEZ) and continental shelf.
According to UNCLOS, an EEZ extends 200 nautical miles from the
low-water line on a country's coast.1

All
the claimant countries use legal arguments, often based on skewed
definitions of UNCLOS articles, to justify their territorial
claims. Only China, however, exhibits the combination of broad
territorial claims; economic, political, and military strength; an
uncompromising diplomatic stance; and demonstrated aggressiveness
in pursuing its objectives. This unique combination of traits makes
Beijing at once the most important player in resolving the
territorial disputes and the biggest obstacle to doing so.

China's Claim

Although Beijing persists in reminding all
other claimant countries that the South China Sea is Chinese
sovereign territory, China has been very careful about not
officially demarcating its specific maritime claims. Thus, other
countries can only infer China's specific claims from Beijing's
statements and actions, and China retains the option to change or
redefine its maritime border according to the situation. The
following analysis, therefore, is drawn from the large body of
information published about the dispute but should not be
considered the final word on China's position.2

The
impracticality of drawing coastal boundaries for countries with
complex and deeply indented coastlines, like Norway, or for
archipelagic states, such as the Philippines or Indonesia, was
recognized in such UNCLOS provisions as Article 7, Straight baselines , and Article 47, Archipelagic baselines . These articles
permit countries to draw straight boundary lines across complex or
closely spaced coastal features and islands as long as they do not
interfere with customary freedom of navigation. Beijing, however,
uses exaggerated definitions of these articles and its claimed
islands and coastal features to draw its territorial borders more
than a thousand miles from the Chinese mainland.3

The
Standing Committee of the National People's Congress adopted the
Law on the Territorial Waters and Their Contiguous Areas
(Territorial Sea Law) on February 25, 1992. This law does not
specify China's exact territorial claim, but it does assert
sovereignty over the Paracel and Spratly Islands. Moreover, China
has published a map showing the entire South China Sea from Hainan
Island up to Indonesia's Natuna Island in an enclosed loop as
territorial waters. In 1993, China verbally reassured Indonesia's
foreign minister that the heavily populated and economically
important Natuna Island was not claimed by China, but Beijing has
since failed to formally confirm that informal statement.

Additionally, although most countries
involved in the dispute use the same fuzzy or exaggerated
definitions of UNCLOS provisions to justify their maritime borders,
Beijing does them one better by also proffering a new definition of
"territorial" waters. For most countries, "territorial waters"
extend 12 nautical miles from the low-water line along a country's
coast. When Beijing signed UNCLOS, however, it included a
declaration that postulated definitions of territorial waters and
rights of coastal states different from those written in UNCLOS.4 Among other things, China
declared that:

In accordance with the provisions of the
United Nations Convention on the Law of the Sea, The People's
Republic of China shall enjoy sovereign rights and jurisdiction
over an exclusive economic zone of 200 nautical miles and the
continental shelf.

The People's Republic of China will
effect, through consultations, the delimitation of boundary of
maritime jurisdiction with the states with coasts opposite or
adjacent to China respectively on the basis of international law
and in accordance with the equitable principle.

The People's Republic of China reaffirms
the sovereignty over all its archipelagoes and islands as listed in
Article 2 of the Law of the People's Republic of China on the
Territorial Sea and Contiguous Zone which was promulgated on 25
February 1992.

The People's Republic of China reaffirms
that the provisions of the United Nations Convention on the Law of
the Sea concerning innocent passage through the territorial sea
shall not prejudice the right of a coastal state to request, in
accordance with its laws and regulations, a foreign state to obtain
advance approval from or give prior notification to the coastal
state for the passage of its warships through the territorial sea
of the coastal state.

By
making this declaration, China is defining how it will interpret
certain sections of UNCLOS and how they apply to China's existing
territorial claims. China is saying that its sovereign maritime
border is 200 nautical miles, not the traditional 12 miles. Beijing
is also claiming that the islands and reefs of the South China Sea
are Chinese territory and thus also have EEZs extending an
additional 200 nautical miles from these points. Finally, it is
redefining China's rights as a coastal state by insisting that
warships making innocent passage must first obtain Chinese
permission, again a violation of both UNCLOS and the traditional
laws of the sea.

The
position of the Chinese government has direct implications for the
freedom of navigation of America's Navy and Air Force vessels.
China's insistence that any warship traversing the South China Sea
must first gain permission nullifies the rights of foreign warships
to conduct innocent passage. Furthermore, warships that do traverse
territorial waters have severe restrictions applied to their
operations. The following are some examples as outlined in Article
19 of UNCLOS:

a) Any threat or use of force.
b) Any excercise or practice with weapons of any kind
c) Any act aimed at collecting information.
d) Any act of propaganda
e) The launching, landing or taking on board of any aircraft.
f) The launching, landing or taking on board of any military
device.
g) The carrying out of research or survey activities.

These restrictions, if applied to the entire South China Sea,
would severely restrict the operations of the United Sates Navy and
hinder its ability to protect both American and international
shipping. For example, under the territorial waters restrictions,
American carriers would be prohibited from launching aircraft. In
modern navies, aircraft operations are indispensable for air-sea
reconnaissance, marine mine detection, and attacking hostile ships
and aircraft. Therefore, if a hostile force were to assault
American or allied shipping in the South China Sea, the U.S. Navy
would be helpless to detect or prevent such an attack.

Furthermore, in light of China's stated
position, the dispute between China and the United States over the
activities of the EP-3 reconnaissance airplane near Hainan Island
in April 2001 should not be seen as an isolated incident. Rather,
China's skewed interpretation of territorial waters transformed an
unfortunate but routine accident into an international standoff.
China's position on its territorial waters ensures that the
"spy-plane" incident could well be the first round in an escalating
confrontation between China and the United States.

Militarizing the
Dispute. In addition to being an explicit threat to
freedom of navigation, China's penchant for unilateral use of force
has unnecessarily militarized the dispute. Vietnam and China
dispute ownership of the Paracel Islands. The last time there was a
clash of arms between claimants was in 1988 when Chinese and
Vietnamese navies fired on one another. China was successful and
now occupies all of the Paracel Islands, and as far as Beijing is
concerned, the Paracels are no longer an issue for discussion.
After this success, China signed UNCLOS, which provides clear
arbitration mechanisms.

Before 1995, China participated in five
Indonesia hosted unofficial conferences on the South China Sea
designed to explore territorial disputes. China participated in
each of these conferences and agreed to the unofficial statements,
including the prohibition on the use of force. Then, in 1995, it
was discovered that China had built a navy station on Mischief
Reef, a reef that is completely under water even at low tide and
well within the EEZ of the Philippines. Neither the reef's location
nor its lack of dry surface prevented Chinese officials from
declaring the reef "historical" Chinese territory.

In
short, China attends international fora and signs pleasant-sounding
statements but steadfastly refuses multilateral negotiations,
insisting that each dispute must be resolved bilaterally, and acts
unilaterally. By so doing, it nullifies the UNCLOS arbitration
mechanisms and the unofficial conferences sponsored by the
Association of South East Asian Nations (ASEAN). Meanwhile, China
continues to build up its naval and air forces in the region.

Finally, the failure to resolve the
dispute has turned the South China Sea into a zone of anarchy. The
various claimants not only have failed to negotiate boundaries, but
also have failed to regulate over-fishing and the exploitation of
seabed resources, control maritime piracy, or prevent rampant
environmental degradation. The South China Sea's rapid decline will
progress unchallenged until countries in the region agree to
resolve their dispute.5

How Strong is China's Claim?

As
stated earlier, China's claims are based largely on Beijing's
unique interpretations of various articles of UNCLOS. But even a
cursory examination of the articles in question indicates that
China's position is not sustainable. For example, China's entire
10,000-mile coastline is not severely indented, as is Norway's
coast, and its claim to a handful of uninhabited islands and reefs
does not make China an archipelago.

To
demonstrate the drastic impact of China's inflated claims, one
needs only to examine what America's territorial boundaries would
be like if Washington used the same interpretations of UNCLOS that
China uses. In that scenario, the United States could claim a
maritime border from the coast of California west past the Hawaiian
Islands all the way to Guam; from Alaska and the Aleutian islands
in the north; south to Howland, Baker, and Jarvis islands on the
equator. Virtually the entire northern Pacific would be American
"internal waters."6

How
would China, or the rest of the world for that matter, react if
Washington demanded that vessels traversing the Pacific Ocean first
seek the permission of the United States? In fact, the UNCLOS
definition of islands requires that they be inhabited and support
an economy.7 Because the American islands
mentioned are inhabited, in some cases with robust economies, the
American claim would be far stronger than China's claim to
uninhabited islands and submerged reefs of the Spratly and Paracel
archipelagos.

For
its part, Beijing cannot demonstrate that Chinese ever inhabited
the Spratly or Paracel Islands, because they are uninhabitable.
There are no sources of fresh water, and these low and in some
cases submerged features are seasonally exposed to the monsoons of
the region. Today, the only permanent populations of these islands
and reefs are military garrisons maintained at immense expense to
their respective governments and at great personal risk to the
members of the garrisons.

Beijing also cites various vague,
questionable, and off-point historical writings supposedly dating
back more than 2,000 years in its attempt to document its claimed
sovereignty over the South China Sea.8 Without
doubt, Chinese explorers and fisherman sailed the South China Sea
for thousands of years and recorded their exploits, but it is
equally clear that the Chinese traditionally have viewed Hainan
Island as the southernmost outpost of their civilization, certainly
until the end of the 19th century.9

Finally, ancient Chinese records do not
nullify the rights of the indigenous Philippine, Malaysian, and
Bruneian peoples. The ancestors of today's Filipinos, Malaysians,
and Bruneians arrived on those archipelagos long before written
Chinese history. They did not walk to those islands, so they must
have sailed or paddled through both the Spratly and Paracel Islands
to arrive where they are living today. Although the Spratly and
Paracel Islands were too small for habitation, these people settled
close to these islands and reefs and must be assumed to have fished
and economically exploited them at least as much as the Chinese
did.

Feckless American Policy

In
the beginning of this new century, China has only a limited
capability of enforcing its territorial definitions on the other
littoral states, but this fact has not stopped China from bullying
its smaller neighbors. This harassment can and frequently does
involve naked military force.

So
far, Washington has steadfastly refused to take sides even when
China occupied a reef within the EEZ of an American ally, the
Philippines, and later constructed an ever bigger naval outpost at
that location. The United States has maintained strict neutrality,
refusing to condemn China's actions and merely calling for all
sides to refrain from the use of force. With the most powerful
country on earth appearing afraid to antagonize Beijing, it is
little wonder that the countries of ASEAN have been unwilling to
take a unified stand: They fear being exposed, unprotected, to
China's anger. The result: Individual countries are forced into
impotent diplomatic objections and seldom support each other, no
matter how abusive China's behavior becomes.

What Washington Can Do

Although it is outside Washington's
jurisdiction to resolve the maritime border dispute in the South
China Sea, America cannot allow China's interpretation of
international law to remain unchallenged and become dominant in the
region. It is in America's national interest to uphold the
principle of freedom of navigation, seek stability in a volatile
region, and restore order to a commercially important waterway.

To
accomplish these tasks, the United States should:

Insist on
adjudication of the disputed territories in accordance with
international law. The United States should recognize that
each of the claimants has reasons to assert its maritime borders in
the South China Sea and, based on this recognition, should take no
sides in this dispute. However, the current state of anarchy is
unacceptable to American interests, and a clear mechanism for
dispute resolution needs to be established. UNCLOS provides for an
arbitration process, and Indonesia's former multilateral efforts
supply a venue.

Oppose extreme claims that would
interfere with the freedom of navigation in the South China
Sea. Beijing's transparent intent to use its unwarranted
and inflexible claims to sovereignty over the South China Sea to
restrict the freedom of navigation--in direct conflict with the
UNCLOS--directly challenge America's interest in keeping these
strategic sea lines of communications open and unobstructed.
Washington must abandon its agnosticism in the South China Sea
disputes and make it clear that it views the claims of the People's
Republic of China, in particular, as wholly unreasonable. If China
is unwilling to take a more reasonable stance, the U.S. should lend
its support to the other claimants. As a further demonstration of
the importance of unrestricted access to international waters, the
U.S. should continue to conduct regular freedom of navigation
exercises in every corner of the South China Sea.

Make it clear that the use of force
to settle any territorial disputes in the South China Sea is
unacceptable and demand that claimants both withdraw all military
personnel currently stationed on the islands and dismantle their
fortifications. Garrisoning the islands and reefs has done
nothing but militarize the dispute, making a peaceful resolution
more difficult. The government of Taiwan has recently replaced its
military forces with coast guard personnel; the U.S. should
recognize this as an acceptable compromise.

Encourage the competing claimants to
formulate a temporary set of regulations, or "rules of the road,"
as a provisional measure until formal treaties can be
negotiated. The current state of lawlessness has resulted
in the spread of criminal activity and the lack of formal
regulations to govern the use of resources, as well as
environmental degradation in the South China Sea.

Conclusion

Heightened U.S. participation in resolving
the maritime border dispute would encourage the smaller countries
with maritime borders in the South China Sea and at the same time
discourage China from further attempts to impose its will
unilaterally. Substantive solutions to the border dispute, however,
will require all claimant countries to negotiate in good faith and
accept compromises in their most controversial claims.

To
protect freedom of navigation, the Administration must convince the
countries in the region that continued anarchy in the South China
Sea is not in their interests either. All claimant countries must
demonstrate their willingness to protect their own long-term
interests by seeking peaceful solutions to the border dispute.

Dana Robert Dillon is Senior Policy
Analyst for Southeast Asia in the Asian Studies Center at The
Heritage Foundation.

1.United Nations
Convention on the Law of the Sea (UNCLOS), Exclusive Economic Zone , Part V,
1982, p. 228.

2.This paper owes an
intellectual debt to Mark J. Valencia for his extensive academic
research on this subject. His ADELPHI Paper 298, China and the South China Sea Disputes
(Oxford University Press, October 1995) was particularly valuable,
as were his many other books and articles on the subject.

3.Max Herriman,
Lieutenant Commander, Australian Centre for Maritime Studies
Incorporated, China's Territorial Sea
Law and International Law of the Sea , Maritime Studies 15,
1997, p. 3. See also discussion of China's claim by Xavier Furtado
in "International Law and the Dispute over the Spratly Islands:
Whither UNCLOS?" Contemporary Southeast
Asia , Vol. 21, Issue 3 (December 1, 1999).